Premkumar S/O Papalal Joshi Vs. Jagir Ahmed S/O Ali Raza Khan - Court Judgment

Excerpt:
c.p. berar letting of houses and rent control order, 1949 - cls. 13, 13a -- eviction of tenant - grant of permission by the rent controller to the landlord for terminating tenancy of the tenant - issue of notice of termination to the tenant - issue of second notice after the dismissal of the writ petition filed by the tenant on the same grounds as of earlier notice - no waiver of earlier notice - no creation of fresh contractual relation of tenancy - landlord entitled to a decree for eviction.;the plain implication of sub-clause (1), is that the previous written permission of the controller is necessary before the landlord gives notice to a tenant determining the lease or before requiring the tenant to vacate the premises where the lease is determinable by efflux of time, by process of law or otherwise if the tenant is willing to continue the lease on the same terms and conditions. under sub-clause (3). the controller has to be satisfied of the existence of any one or more of the contingencies envisaged therein before granting permission. in the present case the controller granted permission with reference to sub-clause (3)(i) and 3(ii) these grounds being that the tenant is in arrears of rent for any aggregate period of six months and he has failed to deposit the amount of arrears together with interest as directed; and that the tenant was habitually in arrears of the payment of rent.;the order of the appellate authority dated 28th january, 1986, whereby written permission was granted to the landlord, under sub-clause 3(ii) in addition to the permission granted earlier under sub-clause 3(i) of clause 13 of the rent control order, was challenged in writ proceedings before the high court.;during the pendency of the writ proceedings, the landlord issued a notice on 16th may, 1986. the proceedings before the high court were disposed of on 17th january, 1990, by the dismissal of the writ petition filed by the tenant. the notice which was issued by the landlord on 21st february, 1990 clearly adverts to these events which had taken place. in the said notice, the landlord referred to the fact that it was upon the request of the tenant, who had informed him that a writ petition had been filed before the high court that he had waited for the outcome of the writ proceedings. the fact that the landlord issued a notice on 21st february, 1990 upon the dismissal of the writ petition by the high court cannot vitiate the proceedings. significantly, no new ground for eviction was sought to be made out in the notice issued on 21st february, 1990, and the ground for termination was the very same ground upon which the rent controller had granted permission to the landlord.;the issuance of the notice on 21st february, 1990, cannot, therefore be construed as amounting to a waiver of the earlier notice. besides, there is absolutely no factual foundation in the proceedings below for coming to the conclusion that there was any such waiver within the meaning of section 116 of the transfer of property act, 1882 or the establishment of a fresh contractual tenancy, which was sought to be terminated by the notice dated 21st february, 1990. until the decree for eviction was passed against the respondent, he continued to be a statutory tenant protected by the rent control order, the rent control order, has interposed two stages in the landlord's right to evict a tenant. the first stage is the issuance of a notice, determining the tenancy and the order provides that even a notice cannot be issued without the previous written permission of the rent controller. thereafter, the statutory protection which is granted to the tenant, continues to subsist until the suit filed by the landlord for eviction culminates in a decree for eviction of the competent court. therefore, all through, the respondent-tenant continued to be a statutory tenant. the notice issued on 21st february, 1990, therefore, does not amount to a waiver of the earlier notice or establish an intention to create a new contractual tenancy between the date of the earlier notice and of the subsequent one, - bombay stamp act, 1958. schedule 1, article 36: [y.r. meena, cj & d.a. mehta & a.s. dave, jj] deed of mortgage liability to pay stamp duty held, any instruments in respect of transactions, relating to loans and advances, loans and mortgages, cash credit or overdraft bonds, agreements of pawn or pledge and letters of hypothecation executed by farmers for agricultural and land development purposes in favour of all commercial bank etc. are entitled to remission of entire duty chargeable under the stamp act with effect on and from 1.4.1979 under government notification dated 23.3.1979. thus, where loan was granted by bank of india under agricultural finance scheme towards purchase of air compressors, drilling rods and other accessories. use of the air compressors, drilling rods and other accessories in case of applicant who is a farmer can only be for purpose of drilling a bore-well for purpose of irrigation in process of carrying on agricultural activities. thus, it is apparent that loan was availed of by applicant-farmer for agricultural and land development purposes because a bore-well would go to increase the utility of agricultural land by ensuring round the year irrigation. the instrument in question would therefore fall within scope of complete remission granted to instrument of mortgage under government notification dated 23.3.1979 and hence not liable to stamp duty under article 36 of schedule i of the act. - the respondent failed to pay the arrears of rent for the period between 23rd april, 1979 and 22nd july, 1980. the applicant moved the rent controller, amravati and sought his permission to issue a notice determining the tenancy under sub-clause 3(i) and 3(ii) of clause 13 of the c. and berar letting of houses and rent control order, 1949. clause 13(3)(i) requires the rent controller to be satisfied that on the date of the filing of the application, the tenant was in arrears of rent for any aggregate period of six months and that he had failed to deposit with the controller the amount of arrears alongwith simple interest at the rate of 9% per annum, as ordered to be deposited by the controller within such time as may be fixed by him. under clause 13(3)(ii) the controller has to be satisfied that the tenant is in habitual arrears of rent. the learned counsel submitted that in the present case, the appellate court was clearly in error in coming to the conclusion that the proceedings for eviction were vitiated for want of approval of the rent controller to the third notice, which was issued on 21st february, 1990. the learned counsel urged that a notice had already been issued on 16th may, 1986 upon the decision of the appellate authority granting permission to the applicant-landlord in terms of clause 13(3)(ii) in addition to the permission which had earlier been granted under sub-clause (i) of the rent control order. no permission had been obtained of the rent controller and, therefore, the notice dated 21st february, 1990 must be held to be invalid with the result that the proceedings for eviction must fail. under sub-clause (3), the controller has to be satisfied of the existence of any one or more of the contingencies envisaged therein before granting permission. in the present case the controller granted permission with reference to sub-clause (3)(i) and 3(ii) these grounds being that the tenant is in arrears of rent for any aggregate period of six months and he has failed to deposit the amount of arrears together with interest as directed; 12. the present case is hence clearly not a case where a waiver of an earlier notice of ejectment can be inferred from a subsequent acceptance of rent. the notice which was issued by the landlord on 21st february, 1990 clearly adverts to these events which had taken place. , held that it is well settled that it is open to the landlord to act upon the permission granted by the rent controller by issuing a notice of termination. 18. having regard to the facts and circumstances of this case, therefore, i am of the view that there is absolutely no merit in the contention of the respondent that the issuance of the notice dated 21st february, 1990 was in violation of the provisions of the rent control order and that the suit for eviction was liable to fail. in reversing the judgment of the learned trial judge, the appellate court has ignored the well settled principles of law laid down by the supreme court and in the judgment of this court, to which, a reference has been made earlier. there has been a clear illegality on the part of the appellate court which would warrant the exercise of the revisional jurisdiction under section 115 of the code of civil procedure, 1908. the conditions stipulated in the proviso to section 115 are also established and the order of the appellate court, if allowed to stand, would result in a failure of justice and will cause irreparable injury to the applicant. there shall also be a decree as passed by the learned civil judge, senior division, amravati in terms of clauses 3, 4, 5 and 6 of the order dated 9th december, 1991. since the learned counsel appearing for the respondent contends that the money decree has already been satisfied, the executing court will take steps to execute any part thereof to the extent to which it has not already been satisfied by a deposit during the pendency of these proceedings.d.y. chandrachud, j.1. the applicant is the landlord of municipal house no, 45, situated in ward no. 59 on plot no. 7, of sheet no. 13-d at bandera in the tehsil and district of amravati. the respondent is the tenant in occupation. the respondent was inducted as a tenant of the premises on a monthly rent of rs. 60/-. the tenancy commenced from the 23rd day of each english calender month and ended on the 22nd day of the succeeding month. the respondent failed to pay the arrears of rent for the period between 23rd april, 1979 and 22nd july, 1980. the applicant moved the rent controller, amravati and sought his permission to issue a notice determining the tenancy under sub-clause 3(i) and 3(ii) of clause 13 of the c. p. and berar letting of houses and rent control order, 1949. clause 13(3)(i) requires the rent controller to be satisfied that on the date of the filing of the application, the tenant was in arrears of rent for any aggregate period of six months and that he had failed to deposit with the controller the amount of arrears alongwith simple interest at the rate of 9% per annum, as ordered to be deposited by the controller within such time as may be fixed by him. under clause 13(3)(ii) the controller has to be satisfied that the tenant is in habitual arrears of rent.2. on the application which was moved by the landlord, the rent controller granted his permission on 2nd may, 1981, with reference to clause 13(3)(i) of the rent control order. thereupon, on 26th april, 1982, the landlord issued a notice terminating the tenancy of the tenant with effect from 23rd may, 1982, and called upon him to pay the arrears from 23rd april, 1979 until 23rd may, 1982. appeals were thereafter preferred to the resident deputy collector under clause 21 of the rent control order. the landlord preferred an appeal in so far as the rent controller had declined to grant permission with reference to the ground that the tenant was habitually in arrears (clause 13(3)(ii)), while the tenant moved the appellate authority against the grant of permission under clause 13(3)(i). on 28th january, 1986, the appeal that was filed by the landlord came to be allowed, while the appeal of the tenant was dismissed by the appellate authority. thereupon, on 16th may, 1986, a second notice came to be issued by the applicant terminating the tenancy with effect from 23rd june, 1986 and demanding the payment of arrears for the period 23rd april, 1979 to 22nd june, 1986.3. against the order of the appellate authority, the respondent tenant moved a writ petition before this court under article 227 of the constitution, which was admitted by this court. the writ petition came to be dismissed by this court on 17th january, 1990. upon the dismissal of the writ petition, a notice dated 21st february, 1990 came to be issued by the applicant. in the notice, which was issued by the applicant, (exhibited in the record of the trial court as exhibit 46), a reference was made to the first notice dated 26th april, 1982; to the order which was passed in the appeals before the appellate authority; and to the issuance of the second notice on 16th may, 1986. in paragraph 3 of the notice, the applicant made a reference to the fact that in his reply dated 3rd june, 1986 to the notice dated 16th may, 1986, the respondent has informed the applicant that he had preferred a writ petition before this court against the order of the resident deputy collector and that he had stated that 'a stay had been applied before the high court and had been granted and the revision was pending'. the applicant stated that the respondent had informed him that the applicant should not act upon the notice of ejectment and in the circumstances, the applicant had chosen to wait for the final decision of this court in the writ petition which was filed by the respondent. the applicant recorded that this court had dismissed the writ petition filed by the tenant on 17th january, 1990. in view of the decision of this court, the applicant stated that without prejudice, he was serving upon the respondent a notice that the lease will be terminated by the end of 22nd march, 1990. the respondent was consequently called upon to hand over possession as of 23rd march, 1990 and to pay the arrears of rent due and payable until the aforesaid date which worked out at rs. 7920/-.4. the applicant thereafter instituted a suit for eviction before the learned civil judge, senior division, amravati, being small cause civil suit no. 156/1990. that suit came to be decreed on 9th december, 1991 and the respondent was called upon to hand over vacant possession of the premises on or before 31st march, 1992. the respondent was also directed to pay an amount of rs. 2710/- together with interest and future mesne profits. the tenant thereupon moved an appeal before the learned additional district judge, amravati and by the impugned order dated 17th june, 1995, the appeal has been allowed and the decree for possession has been set aside. the appellate court has however confirmed the money decree for rs. 2710/- together with interest thereon at the rate of 18% per annum.5. the learned additional district judge held that two previous notices were issued by the applicant-landlord on 26th april, 1982 and on 16th may, 1986. thereafter a third notice was issued on 21 st february, 1990, in which rent had been claimed until 22nd march, 1990. the appellate court was of the view that the notice dated 21st february, 1990 was not lawful because no fresh permission had been granted by the rent controller for issuing the notice. in paragraph 15 of the judgment, the appellate court held that after the earlier two notices were issued by the applicant-landlord upon the permission which has granted by the rent controller and by the resident deputy collector, in appeal, the applicant-landlord had accepted the rent thereafter. the learned additional district judge, therefore, held that: 'the plaintiff himself has accepted the rent till 23rd march, 1999 and he treated him as a tenant'. on this foundation, the order of the learned trial judge has been quashed and set aside.6. before considering the submissions which have been urged at the bar on behalf of the learned counsel for the parties, it would be necessary to record that the finding which has been recorded by the learned additional district judge to the effect that the applicant-landlord had accepted the rent thereafter, meaning thereby after the issuance of the earlier notices dated 26th april, 1982 and 16th may, 1986, has been conceded on behalf of the respondent to be erroneous. the learned counsel for the respondent-tenant has fairly conceded before the court that this finding is erroneous since, as a matter of fact no rent was accepted. the contention of the learned counsel for the respondent-tenant however is that the acceptance or non-acceptance of rent would really make no difference to the legal position and this would be considered subsequently. there is a second factual aspect of the matter, which will have to be adverted to because there is absolutely no dispute in respect thereof and arguments have proceeded on that basis before this court. while issuing the notice dated 21st february, 1990, the applicant had referred in paragraph 3 of the notice, to what had transpired after the 2nd notice dated 16th may, 1986 was issued. in paragraph 3 of the letter the applicant recorded that upon receipt of the notice dated 16th may, 1986, the respondent stated in his reply dated 3rd june, 1986 that he had moved this court in a writ petition against the order of the resident deputy collector. in the circumstances, the applicant was informed that he should not act upon the notice of ejectment and that it was in those circumstances that the applicant waited for the final decision of the court. in the course of his evidence, the applicant-landlord also deposed to the fact that the respondent had replied to his notice dated 16th may, 1986, stating that he had filed a writ petition before this court and asking the applicant not to proceed with the quit notice. the deposition of the respondent before the trial court sets out in paragraph 7 of the examination that he replied to the notice which was issued by the applicant-landlord on 16th may, 1986, and informed the landlord that he was going to file a writ petition in this court against the order of the resident deputy collector, amravati. these are not matters of dispute before this court.7. the learned counsel appearing on behalf of the applicant-landlord has assailed the correctness of the view which has been taken by the learned additional district judge, amravati. the learned counsel submitted that in the present case, the appellate court was clearly in error in coming to the conclusion that the proceedings for eviction were vitiated for want of approval of the rent controller to the third notice, which was issued on 21st february, 1990. the learned counsel urged that a notice had already been issued on 16th may, 1986 upon the decision of the appellate authority granting permission to the applicant-landlord in terms of clause 13(3)(ii) in addition to the permission which had earlier been granted under sub-clause (i) of the rent control order. the tenant had in the meantime moved a writ petition before this court, which came to be dismissed on 17th january, 1990. in the circumstances, the third notice which was issued on 21st february, 1990 was issued without prejudice and in view of the dismissal of the writ petition. the third notice that was issued, it was submitted, cannot be regarded by any means as amounting to a waiver of the notice which was issued on 16th may, 1986, or as reflecting an intention to continue the status of the respondent as a tenant until the issuance of the aforesaid notice. reliance was placed on judgments of the supreme court to submit that under section 113 of the transfer of property act, 1882 the acceptance of rent from a statutory tenant has been held as not constituting an intention to create a fresh tenancy. in the present case, it was urged, even the rent had not been accepted and the issuance of the notice on 21st february, 1990, in the circumstances, did not require the fresh permission of the rent controller.8. on behalf of the respondent, however, it was urged in support of the finding which has been arrived at by the learned additional district judge that upon the grant of permission by the rent controller initially on 2nd may, 1981 and subsequently on 20th may, 1986, the two notices which were issued respectively on 26th april, 1982 and 16th may, 1986, had 'exhausted themselves'. the issuance of a fresh notice was not necessary and the result of the issuance of the subsequent notice dated 21st february, 1990 is that the tenancy would continue to subsist as on the date of the issuance of the notice. no permission had been obtained of the rent controller and, therefore, the notice dated 21st february, 1990 must be held to be invalid with the result that the proceedings for eviction must fail.9. in considering these submissions, it would be necessary to have regard to the provisions of clause 13(1) of the rent control order, which are as follows :13(1). no landlord shall, except with the previous written permission of the controller,-(a) give notice to a tenant determining the lease or determining the lease if the lease is expressed to be determinable at his option; or(b) where the lease is determinable by efflux of the time limited thereby, require the tenant to vacate the premises by process of law or otherwise if the tenant is willing to continue the lease on the same terms and conditions.the plain implication of sub-clause (1), therefore, is that the previous written permission of the controller is necessary before the landlord gives notice to a tenant determining the lease or before requiring the tenant to vacate the premises where the lease is determinable by efflux of time, by process of law or otherwise if the tenant is willing to continue the lease on the same terms and conditions. under sub-clause (3), the controller has to be satisfied of the existence of any one or more of the contingencies envisaged therein before granting permission. in the present case the controller granted permission with reference to sub-clause (3)(i) and 3(ii) these grounds being that the tenant is in arrears of rent for any aggregate period of six months and he has failed to deposit the amount of arrears together with interest as directed; and that the tenant was habitually in arrears of the payment of rent.10. in chaturbhuj sitaram maheshutar v. mangnibai hirachand and anr. (1958) n.l.j. 250 the rent controller granted permission to the landlord under clause 13 of the rent control order, upon which, the landlord served a notice of ejectment upon the tenant, calling upon him to vacate the premises by 22nd august, 1950. even after the service of the notice, the landlord accepted rent for the period until 22nd october, 1950. thereafter another notice came to be served on 24th february, 1951, calling upon the tenant to vacate the premises by 22nd march, 1951 without obtaining the fresh permission of the rent controller. mr. justice j. c. shah (as the learned chief justice then was), speaking for a division bench of this court, held that though the landlord had obtained permission, in writing, of the rent controller before 21st july, 1950 to give notice to the tenant to determine the tenancy, that permission was exhausted when the notice was served. the lease was determined by the notice dated 21st july, 1950, but the landlord having accepted the rent from the tenant for a period subsequent to the date of the determination of the tenancy, the determination of the tenancy was waived. if the landlord then desired to again determine the tenancy, a second permission of the controller was required in the absence of which, the suit would not be maintainable. a reference then was made to section 113 of the transfer of property act, 1882, which provides that notice given under section 111(h) is waived with the express or implied consent of the person to whom it is given, by any act on the part of the person giving it showing an intention to treat the lease as subsisting. the division bench held that a waiver can be inferred from the conduct of the person serving the notice indicating an intention to treat the lease as subsisting. but in the absence of any other circumstance, acceptance of rent which has become due in respect of the premises since the expiration of the notice amounts to a waiver of the notice.11. the learned additional district judge relied upon the aforesaid judgment of the division bench reported in chaturbhuj sitaram's case (supra), and held that 'in the present case exactly similar facts and circumstances are there.' this finding in paragraph 15 of the impugned judgment is then buttressed by the conclusion, which the learned additional district judge draws, that the applicant-landlord had accepted the rent even after the notice has been issued. this finding, as already noted, is factually erroneous and as already noted earlier, a concession to that effect has been fairly made on behalf of the respondent by the learned counsel.12. the present case is hence clearly not a case where a waiver of an earlier notice of ejectment can be inferred from a subsequent acceptance of rent. but independent of the erroneous factual premise of the learned additional district judge, it would be necessary to refer to two judgments of the supreme court, where this issue has been considered. in ganga dutt murarkau. kartik chandra das and ors. : [1961]3scr813 . mr. justice j. c. shah, delivering the judgment for a bench consisting of three learned judges of the supreme court, held that where a contractual tenancy to which the rent control legislation applies has expired by efflux of time or by determination by notice to quit and the tenant continues in possession of the premises by virtue of statutory protection, acceptance of rent from the tenant by the landlord after the expiration or determination of the contractual tenancy will not afford ground for holding that the landlord has assented to a new contractual tenancy. the supreme court held that there is however no prohibition against a landlord entering into a fresh contract of tenancy with a tenant whose right of occupation is determined and who remains in occupation by virtue of the statutory immunity. apart from an express contract, the conduct of the parties may justify an inference that after determination of the contractual tenancy, the landlord had entered into a fresh contract with the tenant, but whether the conduct justifies such an inference must depend upon the facts of each case. where the occupation of premises by a tenant whose tenancy is determined is by virtue of the protection granted by the statute and not because of any right arising from the contract which is determined, the mere acceptance of rent would not establish a fresh contract of tenancy.13. in the subsequent judgment of the supreme court in bhawanji lakhamshi v. himatlal jamnadas : [1972]2scr890 , mr. justice k. k. mathew held that the basis of section 116 of the transfer of property act, 1882, is a bilateral contract between the erstwhile landlord and erstwhile tenant. if the tenant has a statutory right to remain in possession, and if he pays the rent, that will not normally be referable to an offer for his continuing in possession which can be converted into a contract by acceptance thereof by the landlord. the supreme court then observed as follows :-.we have already held the whole basis of section 116 of the transfer of property act is that, in case of normal tenancy, a landlord is entitled, where he does not accept the rent after the notice to quit, to file a suit in ejectment and obtain a decree for possession, and so his acceptance of rent is an unequivocal act referable only to his desire to assent to the tenant continuing in possession. that is not so where the rent act exists : and if the tenant says that the landlord accepted the rent not as statutory tenant but only as legal rent indicating his assent to the tenant's continuing in possession, it is for the tenant to establish it. no attempt has been made to establish it in this case and there is no evidence, apart from the acceptance of the rent by the landlord, to indicate even remotely that he desired the appellants to continue in possession after the termination of the tenancy. besides, as we have already indicated the animus of the tenant in tendering the rent is also material. if he tenders the rent as the rent payable under the statutory tenancy, the landlord cannot, by accepting it as rent, create a tenancy by holding over. in such a case the parties would not be ad idem and there will be no consensus.14. in the present case, a perusal of the evidence of the respondent-tenant would show that there was absolutely no foundation laid at all for setting up the case that there was after the earlier notice dated 16th may, 1986, either a waiver of the earlier notice or the creation of a fresh tenancy. in view of the judgment of the supreme court, in bhawaniji's case (cited supra), it was for the tenant to establish that there were circumstances warranting the drawing of the conclusion that after the issuance of the earlier quit notice on 16th may, 1986, the landlord had continued to treat and accept the respondent as a tenant and this was not referable to the statutory protection which was granted to the respondent but to the creation of a fresh contractual tenancy between the parties.15. in clause 13(1) of the rent control order, there is a statutory prohibition on the termination of a tenancy save and except with the previous written permission of the controller. then under clause 13-a there is an express bar on the court passing a decree for eviction unless the landlord produces a written permission of the controller, as required by sub-clause (i) of clause 13(3) of the rent control order. under clause 21(3), subject to the decision in appeal of the collector the order of the controller is final, in that it is not subject to appeal, revision or review. in the present case, the order of the appellate authority dated 28th january, 1986, whereby written permission was granted to the landlord, under sub-clause 3(ii) in addition to the permission granted earlier under sub-clause 3(i) of clause 13 of the rent control order, was challenged in writ proceedings before this court. the writ petition was admitted by this court on 24th june, 1986. during the pendency of the writ proceedings, the landlord issued a notice on 16th may, 1986. the proceedings before this court were disposed of on 17th january, 1990, by the dismissal of the writ petition filed by the tenant. the notice which was issued by the landlord on 21st february, 1990 clearly adverts to these events which had taken place. in the said notice, the landlord referred to the fact that it was upon the request of the tenant, who had informed him that a writ petition had been filed before this court that he had waited for the outcome of the writ proceedings. the fact that the landlord issued a notice on 21st february, 1990 upon the dismissal of the writ petition by this court cannot vitiate the proceedings. significantly, no new ground for eviction was sought to be made out in the notice issued on 21st february, 1990, and the ground for termination was the very same ground upon which the rent controller had granted permission to the landlord. this case is, therefore, unlike the situation before the supreme court in tayabali jaferbhat tankiwala v. ahsan and co. : [1970]2scr554 wherein the second notice issued by the landlord, the bona fide requirement of the landlord was mentioned while in the earlier notice given a year prior to the second notice, possession was sought on the ground of arrears of rent. such is not the situation in this case. in the instant case, the issuance of the notice on 21st february, 1990, cannot, be construed as amounting to a waiver of the earlier notice. besides, there is absolutely no factual foundation in the proceedings below for coming to the conclusion that there was any such waiver within the meaning of section 116 of the transfer of property act, 1882 or the establishment of a fresh contractual tenancy, which was sought to be terminated by the notice dated 21st february, 1990. until the decree for eviction was passed against the respondent, he continued to be a statutory tenant protected by the rent control order. the rent control order, has interposed two stages in the landlord's right to evict a tenant. the first stage is the issuance of a notice, determining the tenancy and the order provides that even a notice cannot be issued without the previous written permission of the rent controller. thereafter, the statutory protection which is granted to the tenant, continues to subsist until the suit filed by the landlord for eviction culminates in a decree for eviction of the competent court. therefore, all through, the respondent-tenant continued to be a statutory tenant. the notice issued on 21st february, 199o, therefore, does not amount to a waiver of the earlier notice or establish an intention to create a new contractual tenancy between the date of the earlier notice of the subsequent one.16. there was, in my view, absolutely no warrant for the learned additional district judge to interfere with the judgment of the trial court, in the circumstances of this case. the learned additional district judge has overlooked the principles of law which have been laid down by the supreme court in the judgments, in ganga dutt murarka and in bhawanji lakhamshi (supra).17. finally, it would be necessary to advert to a judgment, of a learned single judge of this court in hari prasad v. nathmal chmnilal 1974 mah. l. j. 637 in that case, the landlord had filed an application before the rent controller for permission to terminate the tenancy under the rent control order. after the permission was granted, a notice terminating the tenancy came to be served by the landlord. before the expiry of the notice, the tenant informed the landlord that he had filed an appeal against the order of the rent controller and the permission which had been granted was not final and was subject to the decision of the appeal. the landlord thereafter, in view of the contention raised on behalf of the tenant, accepted the rent from the tenant and after the appeal was decided in favour of the landlord, the landlord again served a notice terminating the tenancy. upon the expiry of the period of notice, a suit for eviction and for arrears of rent came to be filed against the tenant. the tenant raised the plea that the permission which was granted by the rent controller stood exhausted, in view of the notice which was already issued by the landlord and the fresh notice which was not supported by a fresh permission of the rent controller was invalid. a learned single judge of this court, c. s. dharmadhikari, j., held that it is well settled that it is open to the landlord to act upon the permission granted by the rent controller by issuing a notice of termination. if subsequent to the filing of the suit or even upon the passing of a decree in favour of the landlord, the permission is revoked by the high court in writ proceedings, the permission becomes unenforceable by reason of the order passed by the court in the writ petition, (para 6, pg. 640). the learned single judge referred to the judgments of the supreme court which have been referred to by me earlier and held that the mere acceptance of rent was not sufficient to create a new tenancy under section 116 of the transfer of property act, 1882 in a case where the rent control legislation is in existence. moreover, the burden is upon the tenant to prove and establish the assent of the landlord to the tenants' continuing in possession. the learned judge held that it is no doubt true that it is open to the landlord to institute a suit for ejectment immediately after obtaining the permission from the rent controller and it is not necessary for him to await the decision of the appellate authority, but he would be doing so at his own risk and peril. if the permission is revoked by the appellate authority the suit would become infructuous by virtue of clause 21(3) of the rent control order. if the landlord, accepting the contention of the tenant, decides to wait for the decision of the appeal, it cannot be held that there was any intention on his part to continue the relationship of landlord and tenant or to create a new tenancy. where a landlord awaits the decision of the appeal filed by the tenant and in the meantime continued to accept rent from the tenant, the second notice given by the landlord was regarded as one given in continuation of the first notice. the tendering of rent and acceptance of rent in pursuance of the statutory provisions of the rent control order would not create a new tenancy. i am in respectful agreement with the ratio laid down in the judgment of the learned single judge, in hari prasad's case.18. having regard to the facts and circumstances of this case, therefore, i am of the view that there is absolutely no merit in the contention of the respondent that the issuance of the notice dated 21st february, 1990 was in violation of the provisions of the rent control order and that the suit for eviction was liable to fail. in reversing the judgment of the learned trial judge, the appellate court has ignored the well settled principles of law laid down by the supreme court and in the judgment of this court, to which, a reference has been made earlier. there has been a clear illegality on the part of the appellate court which would warrant the exercise of the revisional jurisdiction under section 115 of the code of civil procedure, 1908. the conditions stipulated in the proviso to section 115 are also established and the order of the appellate court, if allowed to stand, would result in a failure of justice and will cause irreparable injury to the applicant.19. in the circumstances, the civil revision application is allowed. the impugned order of the learned additional district judge, amravati dated 17th july, 1995 in so far as the suit for eviction came to be dismissed, is quashed and set aside. the applicant would be entitled to a decree for eviction. there shall also be a decree as passed by the learned civil judge, senior division, amravati in terms of clauses 3, 4, 5 and 6 of the order dated 9th december, 1991. since the learned counsel appearing for the respondent contends that the money decree has already been satisfied, the executing court will take steps to execute any part thereof to the extent to which it has not already been satisfied by a deposit during the pendency of these proceedings. the civil revision application is accordingly allowed in the aforesaid terms.